AN INTRO TO WILLS & ESTATE PLANNING...strongly recommend that you consult a lawyer with expertise in...
Transcript of AN INTRO TO WILLS & ESTATE PLANNING...strongly recommend that you consult a lawyer with expertise in...
AN INTRO TO WILLS & ESTATE PLANNING
This booklet was developed for families caring for a relative with disability and provides an overview of the important elements of estate planning. Provided by
AN INTRODUCTION TO WILLS
What is a will?
A will is a written legal document that gives instructions about how you wish your affairs to be handled after your death. Given the legal and regulatory complexities of caring for a family member who is vulnerable, especially if they are receiving disability support benefits, we strongly recommend that you consult a lawyer with expertise in disability issues when preparing your will.
Brendon Pooran, an Ontario lawyer specializing in disability issues, explains why it is so important to get started on writing a will.
“Getting Started”
An Intro To Wills & Estate Planning
For a listing of lawyers with experience working with individuals
with disabilities and their families, check out the new
Professional Services Directory on the P4P Planning Network.
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Click to view video
Who can make a will?
To be eligible to make a will, you must:
• Beatleast18yearsoldormarried.
• Havetestamentarycapacity.
Testamentary capacity means that you know what a will is
and understand that it will be legally binding upon your death.
• Knowwhatpropertyyouownanditsapproximatevalue.
• Knowwhoyouowealegalormoralobligationtolookafterwhenyoudie.
A will is a written legal document that provides instructions about how you wish your affairs to be
handled after your death.
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THE IMPORTANCE OF HAVING A WILL
Preparing a will has many benefits. Most importantly, it can make sure that your loved ones are taken care of after you die.
A will gives you control over your estate and permits you to:
• Appointanexecutor-someoneyoutrusttomanageyouraffairs;
• Ensurethatthereisaguardianforyourchildorchildrenwhoarelegalminors;
• Protectyourestateforyoursonordaughterwithadisability;
• Protectyoursonordaughterwithadisabilityfromlosingtheirdisabilityassistance;
• Provideaseparate,independentincomeforyoursurvivingspouse;
• Distributeyourassetsaccordingtoyourwishes;
• Payyourdebts,taxes,andotherliabilities;
• Maximizethesizeofyourestateforyourchildren;
• Implementtax-planningstrategies;
• Reducethecostofadministeringyourestate;
• SetuptruststhatcomplywithOntarioDisabilitySupportProgram(ODSP)rules andprotectvulnerablebeneficiaries;
• Appointtrusteesanddirectthemastohowyouwouldlikethemoneyspent;
• Allocateaportionofyourestatetothecharitiesandcausesyouarepassionateabout;
• Helpyouandyourfamilyavoiddelays,strife,needlesstaxation,
costly legal challenges, probate fees, and government involvement.
An Intro To Wills & Estate Planning3
A will gives you control over your estate and permits you to:
• Appointanexecutor-someoneyoutrusttomanageyouraffairs;
• Ensurethatthereisaguardianforyourchildorchildrenwhoarelegalminors;
• Protectyourestateforyoursonordaughterwithadisability;
• Protectyoursonordaughterwithadisabilityfromlosingtheirdisabilityassistance;
• Provideaseparate,independentincomeforyoursurvivingspouse;
• Distributeyourassetsaccordingtoyourwishes;
• Payyourdebts,taxes,andotherliabilities;
• Maximizethesizeofyourestateforyourchildren;
• Implementtax-planningstrategies;
• Reducethecostofadministeringyourestate;
• SetuptruststhatcomplywithOntarioDisabilitySupportProgram(ODSP)rules andprotectvulnerablebeneficiaries;
• Appointtrusteesanddirectthemastohowyouwouldlikethemoneyspent;
• Allocateaportionofyourestatetothecharitiesandcausesyouarepassionateabout;
• Helpyouandyourfamilyavoiddelays,strife,needlesstaxation,
costly legal challenges, probate fees, and government involvement.
What are the implications of not having a will?
If you die without a will, the impact on your family, particularly your child or children, can be extreme, affecting every aspect of their lives.
Without a will:
• Yourestateisdividedaccordingtoanassetformuladefinedbythegovernment;
• Yourfamilymayexperiencedelaysinreceivingyourassets;
• Yourfamilymayexperiencestrife;
• Yourestatemaybesubjecttounnecessarytaxation;and
• Yourfamilymemberwithadisabilitymaylosetheirdisabilitybenefits.
YOUR WILL AND MARRIAGE
If you are married and die without a will, your spouse will get a fixed sum of money from your estate. The balance of your estate will then be divided between your spouse and your children.
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New marriages
A new marriage may void existing wills. As such, you and your spouse should consider creating new and separate wills.
Creatingseparatewillsasopposedtoajointoneoffershasbenefits:
• Youcanchangeyourseparatewillswithouttheknowledgeor
consent of your spouse.
• Youcanavoidlengthydelaysbeforeyourassetsaretransferred
to the intended beneficiaries.
Divorce and separation
If you are getting a divorce, you also need a new will. Separation from your spouse does not automatically affect your will. If you are separated and pass away, your spouse will receive all of the assets gifted to them in your existing will. If you are divorced but have not updated your will, all of the provisions in your willdealingwithyourex-spousemaybedeemedinvalid.Thissituationcancausemany problems for your family and the executor of your estate
An Intro To Wills & Estate Planning5
What are your obligations?
Despitebestintentions,therearelegalprotocolsthatmustbefollowedwhenaparent passes away. In Ontario, a parent has a legal obligation to provide for their spouse and children.
If you have a child with a disability, your executor is required by law to forward a copy of your will to the Office of the Public Guardian and Trustee which will review your will to ensure that you have treated your child with a disability fairly.
Some parents mistakenly believe that the best strategy is to leave the share for achildwithadisabilitytoasiblingsothattheycanlookafterthechild.However,as far as the law is concerned, you have left your child nothing and have treated them unfairly. In this case, the Office of the Public Guardian and Trustee would intervene.
Providing an inheritance to a child receiving ODSP benefits
IfyourchildrecievesODSPbenefitsandyouleavethemaninheritancewithoutsettingitupinatrust,theymaybecomeineligibleforODSPandlosetheirbenefits Our best advice is to consult a lawyer specializing in disability issues when preparing your will.
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STAYING ON TOP OF YOUR WILL
When should I review my will?
It is important that you review and update your will regularly. Youshouldreviewyourwill:
• Ifthereisamajorchangeinyourlife(e.g.,marriageordivorce):
• Ifsomeonepassesawayorthereisachangeinfinancialsituation;
• Ifyoulearnaboutanewpolicyorregulationthataffectsyourestateplan;and
• Approximatelyeverythreeyears.
Where should I store my will?
Youwillwanttokeeptheoriginalcopyofyourwill,alongwithback-upcopies,filedsafe-ly. It is important to let your family or the executor of your estate know where your will is kept. Many lawyers will retain and file a copy of your will at no cost to you.
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AN INTRODUCTION TO GUARDIANS & EXECUTORS
What is a guardian?
A guardian is a person who has legal responsibility for children under the age of majority.Aguardiancanalsobeappointedtomakedecisionsforanadultwith a disability regarding their personal care or finances.
Ifaguardianforminorchildren(undertheageof18yearsold)livingin Ontario is not appointed, custody of the person is given to the Ontario Ministry ofChildrenandFamilyDevelopment.CustodyoftheirinheritanceisgiventothePublic Guardian and Trustee. For children, guardians appointed in a will are temporary only. An application to the court must be made within 90 days to extend this authority.
What are the types of guardianship for adults with disabilities?
Thelawpresumesthateveryoneover18yearsofagecanmanagehisorherownaffairs. As such, parents cease to be the legal guardians of their child once the childturns18yearsofage.Thissituationposesseveralchallengesforparentswith an adult child who is living with a disability.
In Ontario, there are two types of guardians for adults: a guardian for personal care and a guardian for property.
1) Personal Care Guardian:
The role of a personal care guardian is to act as a substitute decision maker and make personal care decisions for those deemed as incapable when required. Personal care decisions can include choices concerning where to live, what to eat, safety, clothing, personal hygiene, and health care. Currently, a guardian to support an adult with their personal care can only be appointed by the court. Most families and people with disabilities are less than enthusiastic about applying for legal guardianship. The process is costly, time consuming and results in the complete loss of legal status. There is a great deal of indignity in working through a process to deem your loved one incapable.
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2) Guardian for Property:
A guardian of property is someone who is appointed to manage the financial affairs of a person who is deemed as mentally incapable of doing so for him or herself. A guardian to support an adult with their property can be appointed by the court or an application to be a guardian of property can be submitted to the Office of the Public Guardian and Trustee.
We would caution parents to think carefully about the benefits and implications of applying for guardianship of their adult children and to consider legal advice carefully.
An Intro To Wills & Estate Planning
What is an executor?
An executor is the person or professional named in the will who is responsible for ensuring the wishes in your will are carried out.
Hereareafewtipsandideastokeepinmindwhen choosing executors of your will:
• Mostoftenpeoplechooseafamilymemberorfriend to be executor.
• Anexecutorcanbeanypersonovertheageof19oracorporation.
• Itisokaytochooseabeneficiarytobeyourexecutor.
•Choosesomeoneyoutrust.
•Choosesomeoneyouthinkwilloutliveyou.
• Choosesomeonewhoisabletocarryoutyourinstructions.
• Haveatleasttwoexecutorsincaseonecannotfulfill the task or dies before you do.
OnPage16,abriefactionplanwillhelpgetyoustarted on selecting your executors.
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How do I choose a Guardian for my children?
Thankfullyguardiansforunder-agechildrenarerarelyrequiredtofulfillthatrole.Regardless,manyparentsfeelthatchoosingaguardiancanbeaverydifficultand emotional decision.
Ideally,youwouldliketheguardian(s)tobesomeoneyourchildrenknowwelland care for, and someone who knows and cares for them.
Grandparents are often the first option but do they have the energy, health and resources to raise young children. A parent’s adult siblings may take on the role but often, they have a family of their own to care for. If they are willing to care for your children, they may need additional resources and supports and these are things you can plan for.
Like many aspects of estate planning, there are never easy answers. The best outcomes are achieved when you take action and make the hard decisions.
TakealookattheActionPlanonPage15formoretipsandinsightsonselectinga guardian for your children.
When your child reaches age of majority, parents are no longer legally responsible for their children regardless of their abilities.
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TAKING ACTION
Why is it important to consult with a lawyer knowledgeable about disability issues?
It is essential that you consult a lawyer who understands not only wills and estate law but also disability benefits legislation. An easy way to determine this is to simply ask him or her how disability benefits legislation will affect your will. If they cannot give you an informed answer, move on to someone else.
Before your appointment with your lawyer, collect as much of the necessary information as you can and complete as many of the forms required as you can manage on your own. Preparing your information before you meet with a lawyer, will save time and reduce legal fees.
The more thorough and accurate the information you provide, the more effective your will will be.
Be open and frank.
Keepinmindthat:
• Notalllawyersunderstandwillsandtrusts;and
• Notallwillsandtrustlawyerswillunderstanddisabilityissues.
It is critical to find a lawyer who understands disability issues as they relate to your estate because inaccuracies can be very costly later on.
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How can I find a knowledgeable lawyer?
When searching for a lawyer, it helps to ask family members, friends, or colleagues for a referral. The new online Professional Services Directory on the P4PPlanningNetworkisanexcellentplacetostart.Keepinmindthatmanylawyerswillofferacomplimentary30-minuteintroductoryconversation.
•Takeyourtime-Meetseverallawyers
•Prepareafewkeyquestionsinadvancetotesttheirknowledge of disability issues
•Findalawyeryouarecomfortablewithandyoufeelwillworkwithyou
RefertotheworksheetonPage13tohelpyouworkthroughtheprocessof finding a lawyer and scheduling your first appointment.
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COMMON QUESTIONS ON WRITING A WILL
1. Do I need a lawyer to create a will? Yes.Yourlawyerhasexpertisethatwillensurethatyourwillisproperly
drafted and valid. She or he will answer any questions you may have, help you with your tax planning, assist you in deciding on an appropriate executor, and make sure that your assets are distributed according to your wishes and the best interests of your beneficiaries.
2. How do I approach a lawyer about creating a will? Just ask one. Call a lawyer and say you’re interested in planning your estate.
The lawyer will need information about your assets, liabilities, and any other wishes you may have.
3. How much will a lawyer cost me? The cost of drafting a will varies according to your needs and the lawyer.
A lawyer can estimate this cost after an initial interview.
TIPS FOR WILLS & ESTATE PLANNING
Creating a will can be difficult, but a will is the best way to provide for your children, particularly if they live with a disability or are a minor. So try not to get discouraged!
Here are several tips to follow when drafting your will:
• Beforecreatingyourwill,thinkaboutwhatyouandyourchildorchildrenwillwantforthe future. This will help you start planning.
• Getstartedbyorganizingalistofassetsandliabilities.
• Makesureyourwillclearlydescribeshowyouwantyourestatetobedivided.
• Designateaguardianforyoungchildren.It’saverygoodideatolistaback-upguardianin case the first one cannot fulfill the task for any reason.
• Decidewhoyouwanttoserveasyourestatetrustees,thepeoplewhowillmakesurethat the instructions in your will are carried out. It’s a good idea to have multiple trustees in case one cannot fulfill the task or dies before you do.
• Makesurethatthefinaldocumentiskeptverysafeandsecure.Manylawyersofferto retain it for you for free. Another safe place is in a safety deposit box. Just make sure your family or friends know where to find it.
• Haveyourformsfilledoutbeforeyougotoalawyer.Thiswillsaveyoutimeandmoney!
TIPS!HELPFUL
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Action Plan: Choosing a Lawyer and Scheduling Your First Appointment
When choosing a lawyer, it helps to ask family members, friends, or colleagues for a referral.YoucanalsorefertothenewProfessional Services Directory on the P4P Planning Network for Ontario lawyers in your region.
List the names and information for three lawyers or law firms you want to contact for more information.
Lawyer/firm name: _______________________________
Telephone number: _______________________________
Lawyer/firm name: _______________________________
Telephone number: _______________________________
Lawyer/firm name: _______________________________
Telephone number: _______________________________
Once you have a few lawyers you are interested in speaking with, you will want to get answers to the following questions before you schedule an appointment:
• Istheirofficeconvenientlylocated?
• Canyougetanappointmentwiththemrelativelysoon(e.g.,withintwoweeks)?
• Dotheyhaveexperienceworkingwithfamilieswitharelativelivingwithadisability?
• Cantheyofferyoutaxplanningaswell?
• Howlonghasthefirmofferedestateplanningservices?
• Aretheyknowledgeableaboutdisabilitybenefitslegislation?
• Cantheysuggesttrustfirmswhocanactasyourtrustee?
• Dotheyhaveexperiencehelpingclientssetuptrusts?
• Whataretheirfees?
PRINT & FILL OUT
PRINT & FILL OUT
An Intro To Wills & Estate Planning15
Action Plan: Selecting a Guardian
Selectingaguardianforyourchild/childrenisamajordecision.Whenchoosingaguardian,make sure to consider the following:
• Dothesepeoplehaveapersonalrelationshipwithyourminorchild/children?
• Dotheyshareyourcorevalues?
• Dotheyunderstandandagreewithhowyou’vechosentoraiseyourchild/children?
• Cantheyprovidethecareandsupportthatyourchild/childrenneed?
• Willyourchildfeelcomfortableandhappyintheircare?
Make a list of all the people who you think would make a good guardian for your under-age child/children. List these people by preference. For example, if you would ideally like your sister to be your child/children’s guardian, put her name first. Be sure to list at least two people.
1 ______________________________________________
2 ______________________________________________
3 _____________________________________________
4 _____________________________________________
Once you’ve made your list, contact the people on it about your desire for them to be your child/children’s guardian when you pass away. Start with the first and second person (orcouple)onyourlist.Iftheycan’tserveasguardians,movedownyourlistuntilyoufindsomeone who can.
Onceyou’vemadedecisiononaguardianandaback-upensureyourlawyerhasbeen
updated and includes these in your will.
Guardian _______________________________________
Back up Guardian ________________________________
PRINT & FILL OUT
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Action Plan: Selecting Executors of Your Will
Anexecutoristhepersonand/orprofessionalnamedinthewillwhois(orare)responsibleforensuringthewishesinyourwillarecarriedout.Hereareafewtipsandideastokeepinmind when choosing executors of your will:
• Mostoftenpeoplechooseafamilymemberorfriendtobeexecutor.
• Anexecutorcanbeanypersonovertheageof19oracorporation.
• It’sokaytochooseabeneficiarytobeyourexecutor.
• Makesuretochoosesomeoneyoutrust.
• Makesuretochoosesomeoneyouthinkwilloutliveyou.
• Makesuretochoosesomeonewhoisabletocarryoutyourinstructions.
• It’sagoodideatohaveatleasttwoexecutorsincaseonecannotfulfillthetask
or dies before you do.
Make a list of people you will ask to be the executors of your will. List these people by preference. For example, if you would ideally like your nephew to be your child/children’s executor, put his name first.
Names of Potential Executors
1 ______________________________________________
2 ______________________________________________
3 _____________________________________________
4 _____________________________________________
Once you’ve made your list, contact the people on it and ask them to be the executors of yourwill.Startwiththefirstorsecondperson(orcouple)onyourlist.Iftheycannotserveas executors, move down your list until you find someone who can be.
Onceyou’vedecidedonanexecutor(s),writetheirname(s)hereandshare with your lawyer:
1 _____________________________________________
2 __________________________________________